Stephens v. Comstock-Dexter Mines, Inc., Civil 4149

• Decision Date: 22 December 1939
• Docket Number: Civil 4149
• Parties: JOSEPH H. STEPHENS, E. W. STEPHENS, T. A. STEPHENS and F. M. STEPHENS, Appellants, v. COMSTOCK-DEXTER MINES, INC., a Corporation, Appellee
• Court: Arizona Supreme Court

97 P.2d 202

54 Ariz. 519

JOSEPH H. STEPHENS, E. W. STEPHENS, T. A. STEPHENS and F. M. STEPHENS, Appellants, v. COMSTOCK-DEXTER MINES, INC., a Corporation, Appellee

Civil No. 4149

Supreme Court of Arizona

December 22, 1939

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and cause remanded with instructions.

Mr. A L. Hammond, for Appellants.

Messrs Morgan & O'Sullivan, for Appellee.

OPINION

LOCKWOOD, J.

Joseph H. Stephens, E. W. Stephens, T. A. Stephens and F. M Stephens, hereinafter called plaintiffs, brought suit against Comstock-Dexter Mines, Inc., a corporation, hereinafter called defendant, to quiet title to a certain portion of the Comstock and Dexter patented mining claims, said portion being described by metes and bounds in the pleadings, and which we shall refer to as the Stephens fraction. Defendant answered, denying that plaintiff had any interest in the property described in the complaint, and set up as a bar thereto sections 2409, 2050 and 2051, Revised Code of 1928 being a portion of the statute of limitations. It then cross-complained, setting up that it was the owner of and in possession of the property described in the complaint, being the Stephens fraction, claiming by right of that portion of the statute of limitations above referred to, and asking that its title in said fraction be quieted as against plaintiffs.

The case came on for trial before the court sitting without a jury, and the court found that the plaintiffs had failed to establish the allegations of their complaint, while the allegations of the answer and cross-complaint had been established by defendant, and rendered judgment dismissing plaintiffs' complaint and entering a decree in favor of defendant quieting its title to the Stephens fraction, whereupon this appeal was taken.

The evidence in this case, taken as strongly in support of the judgment as it may be, shows as follows: On July 18, 1906, W. W. White, A. C. Gilmore and J. Frank Dillon, who at that time had received a final certificate of patent to the Comstock and Dexter mining claims but to whom actual patent had not yet issued, executed a mining deed conveying an undivided one-fourth interest each in said mining claims to W. W. White, A. C. Gilmore, J. Frank Dillon and E. S. Clark. On August 8, 1906, W. W. White conveyed his interest in the claims to John Lawler, and on August 10th, E. S. Clark conveyed his interest therein to Lawler. On May 28, 1907, United States patent to these claims was issued to A. C. Gilmore, W. W. White and J. Frank Dillon, the patent showing the acreage of the claims as 25.996 acres, more or less. On May 12, 1908, A. C. Gilmore and Anna B. Gilmore, J. Frank Dillon and John Lawler conveyed to J. Q. Stephens out of the Dexter and Comstock claims the tract described in the complaint, which we have called the Stephens fraction, totaling 0.471 acres. On October 26, 1931, Mrs. A. C. Gilmore, who admittedly had succeeded to whatever interest A. C. Gilmore had in the aforesaid mining claims, deeded all her rights therein to T. F. M. Fitzgerald, and on October 28, 1931, E. S. Clark deeded all his interest in the claims to Fitzgerald, the deeds thereto describing the Dexter and Comstock claims as patented, and without reservation. On December 12, 1932, Homer R. Wood and Michael L. Lynch, as executors of the John Lawler estate, deeded an undivided one-half interest in the property as patented, without reservation, to Fitzgerald. In 1934 Fitzgerald deeded all his interest in the mining claims, without reservation, to the defendant herein. All the above instruments were duly recorded in their respective order.

For more than ten years prior to the institution of this action taxes were paid by defendant and its predecessors in interest, Fitzgerald, Clark, Gilmore and the Lawler estate, on these two patented claims, which were assessed half to the Lawler estate and half to Fitzgerald, Clark, Gilmore, and later to the defendant, without exception. The assessment, however, in all cases showed an acreage of less than the amount of the claims as shown by the patent, said difference being more than the area of the Stephens fraction. No assessment, however, was made of any portion of the mining claims, except that which has just been mentioned, to any other party during all of the time. From at least May, 1929, and thereafter up to the time of the commencement of this action, none of the plaintiffs in the case were in actual and physical possession of the Stephens fraction.

The plaintiffs showed by parol...